Nichols v. Lancaster

• Decision Date: 25 October 1895
• Citation: 32 S.W. 676
• Parties: NICHOLS v. LANCASTER.
• Court: Kentucky Court of Appeals

32 S.W. 676

NICHOLS v. LANCASTER.

Court of Appeals of Kentucky.

October 25, 1895

Appeal from circuit court, Scott county.

"Not to be officially reported."

Action by Fannie Lancaster against Mary F. Nichols to recover on a quantum meruit for work and labor done for defendant's husband before his decease. There was a judgment for plaintiff, from which defendant appeals. Reversed.

Geo. E Prewitt, for appellant.

J. C B. Sebree, for appellee.

HAZELRIGG J.

The appellee alleges in her petition that upon the promise of one Wyatt Nichols to devise to her at his death his house and lot and a small strip of land adjacent thereto in the suburbs of Georgetown she went to live with him for the purpose of doing his washing, cooking, etc., and did such service for 19 months; that thereafter Nichols married, and made a will giving all his property to his wife; that the services performed for Nichols were worth $237.50, and this sum together with a small amount paid for taxes on the property, Nichols died owing her; that the appellant was the widow of Nichols, and was in possession of the property, claiming it under the will of her husband. She described the property, and claimed a lien on it. The appellant denied the existence of such a contract, and further averred that she and her husband at the time of his death were living upon and occupying the property described as a homestead, and that she was still so occupying it; that it was of less value than $1,000, and was exempt from the sale for any debt of her deceased husband. The affirmative allegations of the answer were traversed of record, and the parties proceeded to take proof on matters relating to the contract and the service of the appellee. The court sustained the contract, denied the defendant's right to homestead, and adjudged a sale of the property to pay the claim sued on. Accepting the finding of the court on the existence of the contract and the value of the services as being supported by the proof, the question remains, is the appellant, as devisee of her husband, entitled to this property as a homestead? She is sued as such devisee, and she so defends the action, and as such devisee claims the property. By renouncing the provisions of the will, she would have been entitled, under the statute, to its use so long as she occupied it, though a creditor of her husband might have sold it subject to such use and occupancy. She elected, however, to take as devisee, and it is contended that as such she is chargeable to the extent of assets received, and that the specific property may be sold to satisfy the lien secured by the creditor in a suit brought for that purpose. It is clear that if the will under which she claims charged the property with the payment of the testator's debts, she cannot take it as devisee free from his debts. Watson v. Christian, 12 Bush, 524. The petition and the answer as well are silent as to the provisions of the will in this regard. Of course no omission to so charge the property can effect the question of its actual liability, but, if the widow take under such a will, it is held that ...